Responsible and sometimes critical comment on topical legal matters of general interest. This blog does not offer legal advice and should not be used as a substitute for professional legal advice.
Pro Aequitate Dicere

"Modern slavery is a brutal form of organised crime in which people are treated as commodities and exploited for criminal gain. The true extent of modern slavery in the United Kingdom, and indeed globally, is unknown. Modern slavery, in particular human trafficking, is an international problem and victims may have entered the United Kingdom legally, on forged documentation or clandestinely, or they may be British citizens living in the United Kingdom. Modern slavery takes a number of forms, including sexual exploitation, forced labour and domestic servitude, and victims come from all walks of life. Victims are often unwilling to come forward to law enforcement or public protection agencies, not seeing themselves as victims, or fearing further reprisals from their abusers. In particular, there may be particular social and cultural barriers to men identifying themselves as victims. Victims may also not always be recognised as victims of modern slavery by those who come into contact with them" - (Extract from Explanatory Notes to the Modern Slavery Act 2015).

In the UK, the Modern Slavery Act 2015 (mostly) came into force on 31st July 2015 - Explanatory Notes and Commencement Order. The following selection of articles make for interesting reading and they draw attention to some of the perceived deficiencies in the legislation. Examination of the considerable amount of legal detail must await another occasion but the Act is to be welcomed as a major step in combating this serious problem.

There are certain situations where the charge may NOT be imposed (see Regulation 2) such as where the court deals with an offence by way of an absolute discharge. However, in most situations a charge must be imposed. The Regulations do not provide for any discretion on the part of the judge or magistrates and there is no means test applicable to this charge. Consequently, some defendants on minimal means will have the charge imposed.

A few examples will illustrate the charge that must be imposed in the Magistrates' Courts:

Wednesday, 29 July 2015

Two prisoners - Bourgass and Hussain - had been held in solitary confinement for lengthy periods well in excess of the 72 hours which a Prison Governor may order and well in excess of the 14 days maximum that the Secretary of State for Justice may authorise.

The Supreme Court (Lord Neuberger, Lady Hale, Lords Sumption, Reed and Hodge) held unanimously that the decisions to keep the men in solitary confinement ("segregation") for substantial periods were not taken lawfully.

May your will be "overturned" by the court? The basic principle remains that an individual making a will is free to distribute his property and money in any way he or she desires. It has been possible for certain categories of individuals to apply to the court for "reasonable financial provision" under the Inheritance (Provision for Family and Dependants) Act1975. The categories include a child of the deceased.

Melita Jackson chose, in her will, to give some £500,000 to various animal charities. Her daughter (Heather Ilott) has succeeded in the Court of Appeal in obtaining reasonable provision - Telegraph 28th July - Could Your Will be overturned by a court?

This Act begins - section 1(1) - "Standing Orders of the House of Lords may make provision under which the House of Lords may by resolution - (a) expel a member of the House of Lords, or (b) suspend a member of the House of Lords for the period specified in the resolution."

A person expelled as a result of such a resolution ceases to be a member. Those suspended are not entitled to receive writs of summons to attend the House and are disqualified from sitting or voting in the Lords - see section 1(2) and 1(3).

Friday, 24 July 2015

On Thursday 23rd July, representatives of the solicitor side of the legal profession met with the Lord Chancellor (Michael Gove) over their concerns about fee reductions for criminal legal aid work and government plans to introduce "dual contracts" - (see previous post of 12th July).

The Criminal Bar Association (CBA) had balloted its members and obtained a vote in favour of supporting the solicitors - (Law Society Gazette - Criminal bar announces date for legal aid action ). CBA had instituted a "no returns" policy to be effective from 27th July.

The CBA was not present at the meeting with the Lord Chancellor. On Tuesday 21st July, the solicitor organisations updated the CBA as to a change of direction in the action being taken by solicitors - Statement - and here are the details of the revised tactics. The new tactics focus the protest of solicitors on Crown Court work.

Thursday, 23 July 2015

In a speech delivered on 20th July, the Prime Minister outlined his views, concerns and plans relating to "Extremism" - Speech at Ninestyles School, Birmingham on 20th July 2015. An Extremism Bill is promised in the autumn along with announcement of the government's Counter - Extremism Strategy. This is a subject with massive political ramifications. This post looks briefly at some of the possible legal aspects of the strategy as outlined in the PM's speech. Any new "Extremism Act" will add to the already considerable volume of counter terrorism legislation on the statute book and demands for new or extended powers seem to come almost daily.

The Prime Minister's speech was focused on "tackling Islamist extremism – not Islam the religion" and he praised the contributions of many British Muslims to British society. The PM described "British Values" by saying:

In many areas of prison law, legal aid for prisoners was removed by the coalition government. In March 2014, the High Court refused to allow a challenge to this policy. On 7th July, the Howard League for Penal Reform went to the Court of Appeal to try to overturn the High Court decision - Howard League - Legal Aid for prisoners

In the autumn, the Ministry of Justice will publish proposals for a British Bill of Rights. Standpoint has published an example of what a British Bill of Rights could look like - Standpoint - A British Bill of Rights - Geoffrey Robertson It is most unlikely that the government's proposals will be as extensive as this.

A very large number of court buildings will be closed across both England and Wales. Today, a consultation was issued by Ministry of Justice in conjunction with Her Majesty's Courts and Tribunal Service and it puts a case for closure of a further 57 Magistrates' Courts, 19 County Courts, 2 Crown Courts, 4 tribunal hearing centres and 9 combined courts.

The consultation runs from 16th July to 8th October. There is little doubt in my mind that these buildings WILL close unless some exceptionally good case can be advanced for keeping a particular court. Whilst the Secretary of State (Mr Gove) spoke to the Justice Committee about courts being within an hour's travel for the public, this consideration will not count for much when set against the Treasury imperative of saving money. In fact, in some parts of the country, the hour - even by car - is but a pious hope! No part of the country seems to escape this axemanship.

Wednesday, 15 July 2015

This morning, the Secretary of State for Justice and Lord Chancellor gave evidence to the House of Commons Justice Committee. He would not offer a guarantee that the government would keep the UK in the European Convention on Human Rights. Gove also indicated that common law protects human rights and that there is no need for the European Convention on Human Rights.

It is reported that the EU is now "demanding" that the UK joins in the Greece rescue package - Telegraph 14th July 2015 - where it is stated that: "EU officials this morning said that deal – arguably Mr Cameron’s
greatest diplomatic coup in Europe to date – had been assessed by
lawyers as nothing more than a “political” accord with no legal force."

Certainly there appeared to be political accord that the UK

Sunday, 12 July 2015

Update 15th July: Ballot result via Criminal Bar Association - the vote in favour of no new work and 'no returns' to support solicitor's action was 982 to 795 - equating to 55% in favour and 45% against. Francis Fitzgibbon QC was elected to the position of Vice-Chair of the CBA.

The Criminal Bar Association (CBA) is conducting a ballot intended to give the executive of the Association a suitable mandate as to whether to support solicitors over the 8.75% cut in litigator's fees imposed by the government from 1st July 2015. (It is the second such cut). As things stand, further changes to criminal legal aid provision will take place from 1st January 2016. The question being asked in the ballot is:

Solicitors
face an 8.75% cut to litigators’ fees. In support of solicitors, do you
wish to go back to ‘no returns’ and also refuse all new work with
a representation order dated from 1st July 2015 until such time as
solicitors decide not to take further action in respect of that cut?

Opinion on this is to be found via the links below. The ballot has some 4000 members eligible to vote and voting closes on 14th July. Interestingly, the CBA ballot refers only to the 8.75% fee cut and not to the connected issue of Dual Contracts (Own Client Work and Duty Provider Work) for solicitors - explained here. Dual contracts will reduce from about 1600 to 527 the number of solicitor firms undertaking duty provider work. The government has already held a bidding process for this new contractual regime.

Friday, 10 July 2015

"Fox-hunting in this country is an emotive and divisive
subject" - Lord Bingham of Cornhill - [2007] UKHL 52

Henry VIII - King of England from 1509 to 1547 - pursued power ruthlessly and it is said that he wore out eight horses a day when hunting! One way in which his name is remembered in legal circles is the so-called "Henry VIII" power. This is a very prevalent method by which Parliament grants to Ministers sweeping powers including, sometimes, power to amend primary legislation. The power is usually exercised by way of a Statutory Instrument and it is usual for a draft of the instrument to have to be "laid before Parliament" for a period prior to it becoming law. In some instances, both Houses of Parliament must vote to approve the instrument (known as "affirmative resolution procedure").

To conduct investigations, adequate powers are required to obtain documents or other material which the Commission believes to be held by others. This is addressed by the Criminal Appeal Act 1995 section 17 but this section is limited to documents or other material held by PUBLIC bodies.

Monday, 6 July 2015

A man walks near Parliament wearing the flag used by "Islamic State" and carrying a young child on his shoulders. The child is carrying a small ISIS flag. The Police, so it seems, did not think that the law had been broken - The Guardian 5th July 2015. The Guardian (quoting a Metropolitan Police statement) commented:

"The man was spoken to by officers, with consideration given to
relevant legislation, particularly the Public Order Act. The decision
was taken by officers at the time that the man was acting within the
law. He was not arrested. Wearing, carrying or displaying of an emblem or flag, by itself, is
not an offence unless the way in which, or the circumstance in which,
the emblem is worn, carried or displayed is such as to cause reasonable
suspicion that the person is a supporter or member of a proscribed
organisation. While support of and membership of ISIS is unlawful it is not a criminal offence to advocate the creation of an independent state."

So, was any offence potentially committed? Here are some observations:

Sunday, 5 July 2015

For those arrested and detained by the Police, access to legal advice is an important right. English law does not go so far as to force the detainee to obtain advice but they ought not to decline it too readily. Many solicitors are protesting at cuts to payments imposed by the
government for both legal advice at Police Stations and representation in the criminal courts. Some are declining to attend Police Stations to advise detainees. Duty Solicitor Schemes
may or may not be affected by this action.

A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time. Section 58(4) states - If a person makes such a request, he must be permitted to consult a solicitor as soon as is practicable. Section 58 goes on to set out certain instances where the Police may delay access to legal advice but these need not concern us here. Section 58 must be read along with PACE Code C (2014).

Friday, 3 July 2015

The present government has committed itself to reform of human rights law. In particular, it seeks to repeal the Human Rights Act 1998 and introduce a British Bill of Rights. This week, two debates in Parliament were of considerable interest. These are well worth watching in their entirety.

30th June 2015 - Westminster Hall debate and Hansard transcript of the debate At 3.58 pm the response by Dominic Raab MP (Parliamentary Under-Secretary of State for Justice) may be seen in which he sets out the government's concerns about the present human rights system. Raab noted - in a problematically worded statement - "... a Bill of Rights is perfectly possible, but it will not solve the
problems or issues that have been the driving force behind the
Government’s current project unless we intend to decouple ourselves from
the European convention, which, mercifully, I understand not to be our
policy." He later referred to three concerns - (1) "exponential expansion of rights" that the design of the Human Rights Act has promoted, imposing "obligations on the State rather than constraining it"; (2) the effect that some of the "haphazard case law" has had on legal certainty and (3) the Human Rights Act has exposed us to "too much judicial legislation from Strasbourg" (e.g. regarding prisoners and voting). At the end of the debate, Raab refers to an article by Baroness Falkner dated 15th May in Prospect magazine - A British Bill of Rights is a good idea.

and see also the House of Lords Library Note dated 26th June 2015 - Human Rights and Civil Liberties in the UK The Lords debate is notable for the contributions by a number of eminent lawyers - Lord Wallace QC, Lord Lester QC, and former Lords of Appeal in Ordinary - Lord Carswell and Lord Brown. The Minister of State for Justice (Lord Faulks QC) clearly stated that leaving the European Convention was not part of the government's plans. There would be full consultation on proposals and the government would be engaged with the devolved administrations and also the government of the Republic of Ireland (a party to the Good Friday Agreement). The government's aim was to achieve a fair and just "One Nation" Bill of Rights that had public confidence. The UK would continue to adhere to its many international obligations such as those under the Torture Convention.

Wednesday, 1 July 2015

The coalition government (2010-15) reduced considerably the provision of legal aid for civil cases. The Conservative government is pressing ahead with plans - put together by the coalition government - to reduce fees payable to solicitors for criminal law work. This is proving to be unacceptable to solicitors and, in protest, many firms have now decided to withdraw from providing criminal representation from 1st July.

The Criminal Bar Association is balloting its membership. The question being asked by the CBA is:Solicitors
face an 8.75% cut to litigators’ fees. In support of solicitors, do you
wish to go back to ‘no returns’ and also refuse all new work with
a representation order dated from 1st July 2015 until such time as
solicitors decide not to take further action in respect of that cut?

In A View from the North, one barrister explains why he will be supporting action to oppose the cuts. He points out that the 8.75% cut is not only in respect of litigator fees but applies to other fees such as those for police station visits. It is also am additional cut on top of the cut already suffered and is in advance of a further cut due in January 2016. These cuts are being introduced before the consolidation has taken place that the Government
recognises has to take place to avoid total market failure.

About Me

Peter Hargreaves LL.B (Hons). Live in Greater Manchester but spend as much time as possible in N. Yorkshire. Politically, closest to the Lib Dems than any other! Retired after 40 years in civil aviation. Life long interest in law about which there is much misinformation and misunderstanding. My blog seeks to look at topical items and their complexities and tries to explain things in a straightforward way. Obiter means "by the way" and my posts are "by the way." I hope that the posts are responsible, balanced and informative but it is for you, the reader, to make up your own mind. I do not seek to persuade you. At all times I will try to speak for fairness - Pro Aequitate Dicere.